Mr Justice Andrew Smith:
- There are before me two applications: an application made by the claimant, Citicorp International Limited ("Citicorp"), by notice dated 25 September 2013 for summary judgment for US$84,100,000.33, interest and other relief; and an application by the defendant Shiv-Vani Oil & Gas Exploration Limited ("Shiv-Vani") by notice dated 13 December 2013 that Citicorp elect within seven days whether to continue with these proceedings or with proceedings in India, and, if it choose the Indian proceedings, that these be dismissed or stayed pending the outcome in India.
- Shiv-Vani, an Indian company, is said in evidence of Mr Etoori Rao, the Head of its Legal Department, to be "one of India's leading on-shore oil and gas integrated services providers, providing onshore Exploration and Production (E&P) services ranging from seismic services, well drilling and work over operations for clients such as India's Oil and Natural Gas Corporation (ONGC), Oil India Ltd. (OIL) and other public and private sector companies". He describes it as "one of the premier and pioneering companies in the field of oil and gas exploration services" and a "viable business and a solvent and running company" with thousands of employees in India, with a turnover as at 31 March 2013 of Rs 1100 crores and with fixed assets valued at 3,300 crores.
- Citicorp is the trustee of two series of bonds issued by Shiv-Vani under the terms of a trust deed dated 16 July 2010. Bonds to the value of $75 million were issued on 16 July 2010 and another $5 million of bonds were issued on 12 August 2010.
- The trust deed is governed by English law and has a jurisdiction clause in these terms:
"The courts of England and Wales are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Trust Deed, the Agency Agreement, the Conditions or the Bonds and accordingly any legal action or proceedings arising out of or in connection with this Trust Deed, the Conditions or the Bonds ("Proceedings") may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of such courts and waives any objections to Proceedings in such courts on the grounds of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is for the benefit of the Trustee and the Agents shall not limit the right on any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not)."
The trust deed also provides that Shiv-Vani irrevocably appoint Law Debenture Services Limited ("Law Debenture") as its authorised agent for service of process in England.
- As for the form of the bonds to be issued, the trust deed provides that they would all be represented by a Global Certificate in the aggregate principal amount of all the bonds, which was to be to be delivered to the Common Depositary, Citibank Europe plc in its capacity as common depositary for Euroclear and Clearstream, Luxembourg, and issued in the name of a nominee of the Common Depositary. It was to be deposited on terms that the Common Depositary would hold it for the accounts of those who would otherwise be entitled to receive bond certificates, and Euroclear and Clearstream, Luxembourg were to credit each subscriber's account appropriately. Further, it was provided that "The holders of Bonds evidenced by the Global Certificate(s) shall, subject to the Conditions, in all respects be entitled to the same benefits under this Trust Deed as individual Bonds evidenced by definitive Certificates". Definitive Certificates, if issued, were to be "substantially in the form set out in Schedule 1 [to the trust deed] and endorsed with the Conditions", the Conditions being defined as "the terms and conditions set out in Schedule 1 …".
- The trust deed also provides that Citicorp may enforce all claims under it or in respect of the bonds by action in its own name and without joining bondholders to the proceedings, and that at any time after the bonds became due and repayable, Citicorp might take such proceedings against Shiv-Vani as it saw fit to enforce repayment and to enforce the provisions of the deed. And it includes provisions that, as long as any bond was outstanding:
i) Shiv-Vani would comply with, perform and observe the provisions of the trust deed and the "Conditions"; and
ii) Citicorp would be entitled to enforce the obligations of Shiv-Vani under the bonds and the Conditions as if they were set out and contained in the trust deed, which should be read and construed as one document with the bonds.
- Schedule 1 to the trust deed is a "Form of Certificate for Definitive Bonds", and it includes conditions governing the certificates. Immediately under the heading "Terms and Conditions of the Bonds" is the statement that, "The following other than the words in italics is the text of the Terms and Conditions of the Bonds which will appear on the reverse of each of the definitive certificates evidencing the Bonds". (I shall refer to these words as the "italics note". These words are themselves in italics except for the article "the" before "words": that curiosity must be a slip and nothing turns on it.) This is followed by terms that run to over thirty pages of small print; it is hard to conceive how they could all have appeared on the reverse of a sensibly sized certificate, but it is common ground, subject to an argument to which I shall come, that they are all the terms and conditions referred to.
- The Conditions include these:
i) That the bonds bear interest at 5% pa in arrears payable semi-annually on 16 January and 16 July each year;
ii) That default interest accrue on any overdue sums on a daily basis of 5% pa; and
iii) That a failure by Shiv-Vani to pay any interest when due was an Event of Default, and following an Event of Default Citicorp might give notice that the bonds were immediately due and repayable in an amount described as the Accreted Redemption Amount. The conditions stipulate how the Accreted Redemption Amount should be calculated.
iv) That the bonds, the trust deed, an associated agency agreement and "any non-contractual obligations arising out of or in connection with them are governed by, and are to be construed in accordance with, the laws of England. In relation to any legal action or proceedings arising out of or in connection with them, [Shiv-Vani] has in the Trust Deed irrevocably submitted to the courts of England and in relation thereto has appointed [Law Debenture] as its agent for service of process in England."
- At the end of the terms and conditions is this sentence (the "RBI statement") in italic print:
"Under current conditions of the RBI [sc. Reserve Bank of India] applicable to convertible bonds, [Shiv-Vani] would require the prior approval of the RBI before repaying the Bonds before 17 August 2015, including redemptions pursuant to [specified conditions] or acceleration following an event of default prior to 17 August 2015, and such approval may or may not be forthcoming."
- On 16 July 2013 interest in the sum of $2 million fell due for repayment under the bonds, but was not paid. On 18 July 2013 Citibank NA, as Principal Agent, gave Shiv-Vani written notice of the default. On 31 July 2013 Citicorp notified Shiv-Vani that an Event of Default had occurred under the Conditions and was continuing, and that the bonds were immediately due and repayable; and it demanded immediate payment of $84.1 million. The demand remaining outstanding, on 23 August 2013 Citicorp brought these proceedings in which it claims the $84.1 million as the Accreted Redemption Amount. On 25 September 2013 it issued its applications with a view to obtaining summary judgment and served them with supporting evidence on Law Debenture in accordance with the trust deed.
- On 23 August 2013 Citicorp also issued a winding-up petition against Shiv-Vani in the High Court of Delhi alleging inability to pay its debts. On 13 September 2013 Shiv-Vani applied to set it aside, and on 21 November 2013 Shiv-Vani filed a reply to the petition. Among its "Preliminary Objections" Shiv-Vani pleaded that the winding-up jurisdiction is to be invoked as a last resort and "only after exhausting all alternate remedies available to a party"; and "Since the petitioner has admittedly already initiated civil proceedings before the concerned English court, it is for the said Court to adjudicate the claim of the Petitioner after giving due regard to the terms and conditions of the bonds and the defence of [Shiv-Vani]". The point was reiterated: for example, "the issue whether the entire sum under the Bonds/Trust Deed has become due or not is a subject matter of trial and needs adjudication by the English Court"; and "The Petitioner had filed the present Petition as a substitute to its civil remedies which it is already pursuing in England. The appropriate remedy for the Petitioner therefore lies in the civil courts and not the present jurisdiction. In the present case, since the Petitioner itself is conscious of the fact that its claim to the entire sum under the Trust deed requires adjudication by the Civil Court in England, the Present petition is therefore an abuse of the winding up jurisdiction if this Hon'ble Court and merits dismissal on this ground alone".
- The Delhi Court has granted interim relief against Shiv-Vani, including orders restraining disposal of assets and that it provide fortnightly bank statements.
- On 6 December 2013 Citicorp's applications came before Blair J, but he adjourned them to 29 January 2014. On 2 December 2013 for the first time Shiv-Vani, who had not previously engaged with these proceedings, had stated that it would challenge the court's jurisdiction and that it had a substantive defence to Citicorp's claim. Blair J adjourned the applications not because he saw merit in Shiv-Vani's position, but because the court did not have enough time. He directed that by 13 December 2013 Shiv-Vani file and serve an application "to challenge the jurisdiction of the Court pursuant to CPR 11", with supporting evidence.
- On 9 December 2013 Shiv-Vani acknowledged service of these proceedings stating that it intended to contest jurisdiction. On 13 December 2013 it issued notice of its application for an order, supposedly pursuant to CPR Part 11, that Citicorp elect within seven days whether to continue with these or the Indian winding-up proceedings, and, if it choose the Indian proceedings, these be dismissed or stayed pending the outcome in India. This is, as was acknowledged by Mr Stuart Cakebread QC, who represented Shiv-Vani before me (but not before Blair J), not an application under CPR 11 or a challenge to the court's jurisdiction over these proceedings, but for a stay under the court's case management jurisdiction over proceedings properly before it. It is not suggested, however, that the change in Shiv-Vani's position or the terms of Blair J's order are fatal to the application.
- On 13 December 2013 Shiv-Vani also served a witness statement of Mr Rao. He did not refer to the RBI sentence or the need for approval of the RBI to make certain payments. He said about Shiv-Vani's defence to the claim:
i) That Shiv-Vani was prevented from paying the interest in July 2013 by an "unforeseen and unforeseeable act" of the Indian Service Tax Department, who directed its clients to remit directly (and not via Shiv-Vani) tax due on its invoices, and that as a result it was "commercially impossible" for Shiv-Vani "to fulfil its contractual obligation under the Trust deed on time".
ii) That he understood that ICICI London, the holder of 10% of the bonds, opposed these proceedings; and that on 12 December 2013 Shiv-Vani had sought details of the bondholders to determine whether they supported the litigation and awaited a response.
- Shiv-Vani does not dispute that the court has jurisdiction, and, given the terms of the trust deed, a challenge would have been hopeless. However, it argues that case management considerations justify an order putting Citicorp to election whether to pursue these or the Indian proceedings. It submits that the court has power to order this notwithstanding the jurisdiction clause in the trust deed, which, it is said, precludes objection by Shiv-Vani on grounds of "venue" (whatever that might mean) or forum non conveniens, but permits challenge that the proceedings are vexatious or an abuse, and permits an application that the court exercise its case management powers to restrain Citicorp from pursuing simultaneous proceedings in more than one jurisdiction. I accept this submission, which was not, I think, challenged by Mr Ewan McQuater QC, who represented Citicorp. The question is whether the court should exercise its powers. In Reichhold Norway ASA v Goldman Sachs International, [2000] 1 WLR 173 the Court of Appeal upheld a decision to stay proceedings pending the determination of an arbitral reference in Norway, but Lord Bingham MR made it clear that such orders should be made only in rare and compelling circumstances. The court will be more the reluctant to order a stay in cases (such as this) where the parties have agreed that the English court should have jurisdiction over the proceedings: Equitas Limited v Allstate Insurance Co, [2008] EWHC 1671 para 66. But a jurisdiction agreement does not preclude an application of this kind: in Amlin Corporate Member Limited v Oriental Assurance Corp, [2012] EWCA 1341, Longmore LJ said (at para 22): "… I doubt if it is useful to talk in terms of degrees of rarity or compellability. It is better just to decide if the circumstances of any particular case are rare and compelling enough, the presence of an exclusive jurisdiction clause conferring jurisdiction on the English courts to try a dispute is just one of the relevant circumstances to bear in mind when a judge exercises his discretion."
- Mr Cakebread's argument that the circumstances of this case justify a stay invoked the decision of the Court of Appeal in Racy v Hawila, [2004] EWCA Civ 209, in which the defendant sought similar relief to that sought by Shiv-Vani: that the claimant elect whether to pursue an action in Lebanon or proceedings before the Chancery Division of the English court. Blackburne J had granted such an order, and his decision was upheld, Jonathan Parker LJ describing it (at para 66) as "manifestly right". The dispute in that case concerned a business relationship between the claimant and the defendant, which had extended to many countries and many differing businesses and other interests, some of which were conducted through a group of companies of which the holding company was Midmac Holding Corp SA ("MHC"), a Luxembourg company. Midmac SARL ("SARL"), a Lebanese company, was a subsidiary of MHC and acted as a holding company principally if not exclusively for a Qatari entity that carried on construction business in the Middle East. In 2002, Mr Racy, the English claimant, had brought proceedings in Lebanon for the liquidation of SARL. Mr Hawila, the defendant in the English proceedings, challenged the jurisdiction of the Beirut court over the proceedings. Some ten months after bringing the Lebanese proceedings, Mr Racy issued the English proceedings: I need not describe them, but Blackburne J concluded that there was "a very considerable degree of overlap between the two [proceedings] in that both are concerned with the business relations between Mr Racy and Mr Hawila stretching back to January 1985 conducted, according to Mr Racy in the English action, in part through the Midmac Group and in part outside it. Many of the allegations in both actions are the same."
- There are important differences between this case and the Racy case. There the Lebanese proceedings apparently had advanced some way before the Chancery Division proceedings were brought. Moreover, the parties had not entered into a jurisdiction agreement, whereas here the parties had agreed that Citicorp might proceed in England, and also their agreement contemplated that it might do so notwithstanding concurrent proceedings elsewhere. However, Mr Cakebread relied on the decision to submit that, where there is a considerable overlap of the subject matter of two proceedings in different jurisdictions, the court will prevent a claimant from pursuing them both, even if the proceedings are different in terms of the relief sought, more specifically if one makes a monetary claim and the other by way of winding-up or liquidation proceedings. This leads to the question whether there is an overlap between issues in dispute here and in India such that proper case management demands that Citicorp pursue only one set of proceedings.
- I am not persuaded that I should require Citicorp to elect which proceedings it is to pursue (or to pursue first) because issues overlap or for any other reason. As I shall explain, the only issue in the English proceedings is a narrow question about the meaning and effect of the parties' agreement. That is governed by English law, and it can properly be decided summarily against Shiv-Vani. In my judgment, efficient case management calls for it to be determined by the English court, which indeed is what Shiv-Vani itself pleaded in the Indian proceedings should happen. I cannot accept that it will cause any inconvenience in the Indian proceedings for the English court to decide the issue. Given that I shall determine it summarily, and this will decide the claims in these proceedings, in my judgment it would be unnecessary and inefficient and unjust to require Citicorp to desist from the Indian proceedings as a condition of pursuing these, notwithstanding Shiv-Vani can seek permission to appeal against an unfavourable determination and Mr Cakebread made it clear that it would do so.
- Mr Cakebread advanced one argument that Shiv-Vani has a real prospect of successfully defending the claim, and he acknowledged that otherwise Shiv-Vani had failed to pay interest when it fell due under the bonds in July 2013, that therefore there had been an Event of Default, that notice had been duly served that the bonds were immediately due and repayable, and that Shiv-Vani is liable for the Accreted Redemption Amount that Citicorp claims. Nor is any other reason suggested that the case should be disposed of at a trial.
- Mr Cakebread's argument is based upon the RBI sentence. He submitted that it is a contractual provision, and its implication and effect is that the parties recognised and agreed that Shiv-Vani was not obliged to repay the bonds unless it had approval from the RBI to do so; and alternatively, even if the sentence is not contractual, nevertheless it, together with the Indian Foreign Exchange Management Act, 1999 ("FEMA") to which it alludes, constitutes the context in which, as the parties knew and expressly recognised, they were contracting and it is an implied provision of their contract that Shiv-Vani was not obliged to repay the bonds unless it had approval from the RBI to do so. The relevant provision of FEMA is in section 3 and it provides in relation to "dealing in foreign exchange etc" that "Save as otherwise provided in this Act, rules or regulations made thereunder, no person shall (a) deal in or transfer any foreign exchange or foreign security to any person not being an authorised person; (b) make any payment to or for the credit of any person resident outside India in any manner; (c) receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner". There was no reference to the argument about RBI's approval in Mr Rao's evidence or before Mr Cakebread produced his skeleton argument. This might explain why the only factual material about it is the provisions of FEMA itself. There is no evidence about how the provisions of FEMA have been interpreted and applied under Indian law; nor about whether rules or regulations have been made under FEMA that would have permitted repayment; nor about whether Shiv-Vani could have repaid the bonds without RBI's approval, say from funds held outside India. Further, there is no evidence (and no suggestion) that Shiv-Vani has sought RBI's approval to repay the bonds. More directly relevant to the argument that Shiv-Vani is not obliged to make repayment without RBI's approval, it has not provided any evidence that RBI has not given it.
- However, I need not decide about Citicorp's applications on the basis of the evidential paucity, because I consider that Shiv-Vani's argument cannot succeed as a matter of law. Before going further, I emphasise that it is about the proper interpretation and effect of the contract into which Shiv-Vani entered. Mr Cakebread did not advance a separate argument based upon illegality or public policy, and he was right not to do so. Whilst English law excuses performance of an obligation that is illegal by the law of the country where it is to be performed, it does not do so simply because the person liable to perform it is the resident or national of, or carries on business in, a country where it would be illegal: Dicey, Collins & Morris, The Conflict of Laws (15th Ed) para 32-098; nor does it do so simply because the person would put himself in a position to perform the obligation in a country where it would be illegal to perform the obligation: Deutsche Bank AG v Unitech Global Ltd, [2013] EWHC 2793 (Comm) at para 105. It is common ground that Shiv-Vani was not to perform payment obligations in India. There is some debate about whether they were to be performed in England or in New York, but that is of no present relevance.
- I cannot accept that the parties evinced an intention that the RBI statement should be a term of the trust deed. I consider that in the italics note they evinced an intention that it should not do so: the natural meaning of the note, to my mind, is that, where provisions under the heading "Terms and Conditions of the Bonds" are printed in italics, they are not contractual provisions of the bonds. I recognise that it cannot have been the intention that each individual italicised word is therefore excluded from the contractual terms and conditions: the style adopted for definitions is that the defined terms but not the definitions are italicised, but clearly the whole definitions, including the defined terms, are part of the contractual terms and conditions. But I do not accept that any of the italicised sentences are contractual. The use of the term "words" in the italics note was inexact, and the term "wording" would have been more accurate, but there is no real doubt about the note's meaning or intended effect.
- Mr Cakebread advanced two arguments to the contrary. First, he submitted that other italicised sentences were intended to have contractual effect, and that "It would be extraordinary if the parties intended some of the italicised words to have contractual effect and others not". There are seven other statements in italics, but four of them are about the need for RBI's approval, and Mr Cakebread did not rely on them to support his argument. Nor did he rely upon this italicised statement: "The Shares issued upon conversion of the Bonds are expected to be listed on the [National Stock Exchange of India] and the [Bombay Stock Exchange] and will be tradable on such stock exchange once listed thereon, which is expected to occur within 45 days after the relevant Conversion Date. If there is any delay on obtaining approval of the NSE and the BSE to list such Shares, they shall not be tradable on the BSE and the NSE until the listing occurs". To my mind it is clear from both the language and the content of the statement that the parties did not intend it to be contractual.
- However, Mr Cakebread submitted that the other two italicised statements are contractual and support his argument that the RBI sentence is similarly contractual. The first is under sub-condition 2.1, which is headed "Form and Denomination" and is about the units of the bonds' denomination and about certificates being issued to bondholders and numbered serially. It reflects provisions of the trust deed: it states that on issue bonds will be represented by a Global Certificate deposited with a common depositary, Euroclear or Clearstream, and that provisions in the Global Certificate modify the Conditions. It also says that owners of interests in bonds represented by the Global Certificate would not generally be entitled to receive definitive Certificates, and that bonds were not issuable in bearer form. Mr Cakebread's reasoning was not that the parties evinced an intention that these provisions of the italicised note should have contractual effect. However, he submitted that its last sentence is contractual: "Each of Euroclear and Clearstream is hereby authorised by each Bondholder to disclose to the Trustee (at the request of the Trustee) the details of any legal or beneficial interest of such Bondholder in the Bonds (including the name, address and correspondence details of the Bondholder and the amount of its holding in the Bonds)". I accept that this sentence is of legal import in that it might well preclude a bondholder from contending that Euroclear or Clearstream owe a duty of confidentiality with regard to this information, or to complain about its disclosure to Citicorp by Euroclear or Clearstream. That might affect a bondholder's rights against Euroclear or Clearstream. However, I see no reason to read this provision as intended to affect the legal relationship between Citicorp and Shiv-Vani or to be a term of the contractual arrangement between them. In his oral submissions, Mr Cakebread was inclined, I think, to accept that. After all, condition 2 was headed "Form, Denomination and Title", and, as I have said, sub-condition 2.1 headed "Form and Denomination": the italicised note would not fall naturally under these headings, and this corroborates my view that it was not intended to be included in the contractual sub-condition.
- The other example that Mr Cakebread invoked of italicised words intended to be contractual is a note under sub-condition 3.2, which is headed "Transfers". The sub-condition that was not in italics states that a bond may generally be transferred or exchanged by delivery of the relevant certificate, with the form of transfer properly completed, but that the transfer of title to a bond would not be valid unless and until entered on the Register. There is then this statement in italics: "Transfers of interests in the Bonds evidenced by the Global Certificate will be effected in accordance with the rules of the relevant clearing systems". I consider that this can be understood to be simply intended to give explanatory information to the reader, and indeed I consider that more natural than an interpretation that it is contractual.
- I therefore reject the argument that other italicised statements (apart from defined terms) were intended to have contractual effect between Citicorp and Shiv-Vani, and that therefore the RBI sentence should be similarly understood. On the contrary, to my mind some other statements were clearly not intended to have this effect and the rest are, at best, neutral.
- Secondly, Mr Cakebread put forward this interpretation: that the purpose of the italics note was not to exclude provisions in italics from the terms and conditions of the bonds, but it was to state that those provisions would not be included on the reverse of the definitive certificates. The punctuation of the note provides some support for this interpretation: the absence of a comma before "which will appear" in the italics sentence would conventionally indicate that the relative clause is restrictive (or defining). However, this interpretation would, I think, allow no sensible purpose for italicising the statements: it would state that these terms and conditions were not on the reverse of the definitive certificates, and there would have been no point in excluding them. This far outweighs the punctuation point.
- I therefore reject the contention that the RBI sentence is contractual (or that there is a real prospect of Shiv-Vani defending the claim on the basis that it is), and I come to the alternative argument of an implied term that Shiv-Vani was not obliged to repay the bonds without RBI's approval. The contention is put on different bases: that it would give the contract business efficacy in that commercial sense requires that Shiv-Vani's undertaking to repay be qualified since, as the parties expressly and specifically recognised in the RBI sentence, it might not always be able to fulfil it; alternatively, that the "officious bystander" test enunciated by Mackinnon LJ in Shirlaw v Southern Foundries (1926) Ltd, [1939] 2 KB 206, 227; thirdly, that the term should be implied because it "would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean": A-G of Belize v Belize Telecom, [2009] UKPC 10 at para 21.
- However the argument is put, it seems to me to face two (linked) fatal objections. First, terms cannot be implied into a contract if they contradict the express terms. The Conditions state in unqualified terms that, if notice of an Event of Default is given, the bonds thereby become "immediately due and repayable at the Accrued Redemption Amount". The implied qualification that it was to pay only if RBI had given its approval is not, to my mind, consistent with this.
- Secondly, in determining whether a contract includes implied terms, the starting point is, as Lord Hoffmann said in the A-G of Belize case at para 17, if an instrument does not expressly include a provision, the most usual inference is that the parties did not intend to include it: "If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed." This is particularly so, to my mind, when, as here, the instrument sets out a detailed contract between sophisticated commercial companies who clearly had, or are to be taken to have had, expert legal advice. Of course, even in these circumstances it is possible that the draftsman of a complicated legal instrument "omitted to make express provision for some event because he has not fully thought through the contingencies which might arise" (A-G of Belize, loc cit, at para 25), but it seems improbable that there would be an omission of this kind with regard to the core obligation of Shiv-Vani to make payment in accordance with the terms of the bonds.
- I reject Shiv-Vani's argument on the basis that there is no real prospect that it could establish the legal basis for it at a trial, either through their argument of contractual interpretation or through implication of a term into the contractual arrangements.
- I therefore refuse Shiv-Vani's application, and I give summary judgment for Citicorp.
